The following fair housing questions were recently asked of the Legal Hotline.

Racism

During negotiations for the purchase of three multi-unit rental properties, the seller made some blatantly racist remarks about the kind of tenants he likes to rent to. Are the agents working with the buyer and seller at risk for being accused of illegal discrimination? 

The seller’s behavior is more of an issue for the seller’s property manager and the listing broker than for the cooperating agent. The listing broker may wish to remind the seller of the agreement he made in the listing contract to avoid all discriminatory actions during the sale of the property. The listing broker may be put in a position where he may have to consider terminating the listing if the seller will not conduct himself appropriately and avoid discriminatory comments and behavior.

Occupancy standards

Can a landlord limit the number of children or occupants in rentals? 

Both federal and state law provide that it is not discrimination based on family status if property owners set occupancy standards in compliance with reasonable federal, state or local regulations/ordinances relating to the maximum number of occupants permitted to occupy a housing unit, and these standards are fair and reasonable. Occupancy standards may be created to meet legitimate reasons such as health and safety or overcrowding.

The Department of Housing and Urban Development (HUD) has issued a policy statement setting a general standard of two persons per bedroom to be used in enforcing the federal fair housing law. Under this HUD policy, several criteria may be considered to determine whether an occupancy policy is or is not reasonable, including the size and number of bedrooms, the size of the unit, the configuration of the unit, the age of the children, other physical limitations of the housing such as septic capacity, and any applicable state and local laws. Occupancy standards more restrictive than two persons per bedroom are evaluated to see if they are reasonable under the circumstances. An occupancy policy that limits the number of children per unit is less likely to be reasonable than a policy that limits the number of people per unit. HUD’s policy may be found in Volume 63 of the Federal Register, No. 245, page 70982, Docket No. FR-4405-N-01, available online at www.hud.gov/offices/fheo/library/occupancystds.pdf.

Wis. Admin. Code § 79.09 sets the minimum size of sleeping rooms for existing multifamily housing with three or more dwelling units. This section requires sleeping areas to provide a minimum of 400 cubic feet for each occupant over 12 years of age and 200 cubic feet for each occupant who is 12 years of age or under.

In summary, owners and property managers may adopt occupancy standards so long as such standards are in compliance with reasonable federal, state or local regulations/ordinances and are not based on any other factor relating to protected classes.

Housing for older persons

Seventy-five percent of a building is occupied by tenants age 55 and older. Are there any forms that the owner needs to file with the state for the building to be qualified as senior housing? 

Under both federal and Wisconsin law, housing for persons who are 55 years of age or older means that at least one person who is 55 years of age or older occupies at least 80 percent of the occupied units, and the project adheres to a policy that demonstrates an intent to operate as housing designed for persons who are age 55 or older. Housing projects that meet these requirements are exempt from the prohibitions against discrimination based upon familial status under federal law, and are exempt from the prohibitions against discrimination based upon age and family status under Wisconsin law.

In order for a housing facility or community to qualify as housing designed for persons who are 55 years of age or older, the owner must publish and adhere to policies and procedures that demonstrate the intent to operate as housing for persons 55 years of age or older. These policies and procedures should appear or be referenced in advertising, lease provisions, written rules and regulations, deed restrictions, the actual practices of the housing facility or community and postings in common areas. However, phrases such as “adult living” or “adult community” in written advertisements are not precise enough to demonstrate an intent to operate as housing for persons 55 years of age or older.

In order for a housing project to qualify as housing for persons 55 years of age or older, it also must be able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits. Such procedures may be part of the leasing or purchasing process, but regular updates of the occupancy and age information must be done at least every two years. Reliable documentation of an occupant’s age includes: driver’s license; birth certificate; passport; immigration card; military identification; other official government documents containing a birth date; or a certification in a lease, application, offer to purchase, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older. In addition, the project needs to periodically survey the ages of current residents.

Reasonable modifications

A REALTOR^® is working with a blind couple purchasing a condominium. What responsibility does the condominium association have in regard to building accessibility and walkway compliance with ADA? The walkways do not have handrails on the steps. The outside of the building has a concrete porch with a large drop to the yard but no handrails. The condominium documents state there is to be no change to the outside of the building. 

The ADA applies in places of public accommodation, while this seems to be a question of reasonable modifications under both federal and Wisconsin fair housing law or a basic safety issue. A reasonable modification is a structural modification usually made at the resident’s expense that allows persons with disabilities the full enjoyment of the housing and related facilities. Examples of a reasonable modification include allowing a person with a disability to install a ramp into a building or lower the entry threshold of a unit. Handrail installation may fall within this category, but it may be prudent to first determine whether the absence of handrails is a building code or other safety violation.

Americans with Disabilities Act

A broker listed a beauty salon that is not accessible to persons who use wheelchairs. Will the buyer be required to modify the building to comply with ADA standards? 

Whenever a buyer anticipates the purchase of a place of public accommodation, commercial building or place of employment, the potential cost of ADA compliance should be considered. The ADA is a technical subject that licensees are not required to understand in detail. Competent practice dictates: (1) advising the customer or client that the ADA may be material to the transaction; (2) advising the customer or client to seek expert assistance, such as an architect experienced in the ADA; and (3) drafting contingencies as necessary to insure the buyer will be able to consider the ADA’s impact prior to being bound to a contract.