A Primer on the Fair Housing Act
The Fair Housing Act was enacted in 1968 as part of The Civil Rights Act of 1964. Its primary purpose is to prevent discrimination in housing practices. Additionally, the Fair Housing Amendments Act of 1998 expanded the Fair Housing Act by adding protections for familial status and disability, as well as making it applicable to more housing transactions.
To that end, the Act prohibits discrimination based on race, color, national origin, sex, disability, and familial status. Practically speaking, the Act prohibits multiple forms of discrimination and retaliation . For instance, Section 804(a) of the Act makes it unlawful to refuse to sell or rentals after making a "bona fide offer." Furthermore, Section 804(b) prohibits discrimination in the terms or conditions of the sale or rental of housing. Section 806 of the Act makes it unlawful to otherwise "make unavailable" housing based upon membership in a protected class.
Additionally, there are laws governing Federal Housing Administration (FHA) loans. These laws prohibit discrimination in discrimination in the sale, rental, or just about any other type of business activity like mortgage lending and homeowners insurance.
What is the Fair Housing Act Poster Requirement?
The Fair Housing Act, which prohibits discrimination on the bases of color, race, national origin, religion, sex, familial status, and disability in housing, requires that multifamily housing facilities post a fair housing poster to notify the public of these anti-discrimination rules. The Department of Housing and Urban Development (HUD) enforces the Fair Housing Act.
In short, the poster requirement obligates owners of "covered" multifamily housing facilities to:
Covered housing facilities include buildings with four or more units that contain an elevator and any single family housing sold or rented by a part that is exempt from federal Fair Housing Act requirements. In addition, covered multifamily facilities also include any single family housing built after March 13, 1991, other than any single family house rented by an owner who owns three or fewer single family houses on which the owner is not residing at the time of rental.
Who is Subject to the Poster Requirement?
The Department of Housing and Urban Development (HUD) has long recognized that some violations of the Fair Housing Act can result from either the unintentional or ignorant violation of the law. HUD’s primary response to this problem is information and education and requires covered entities to provide fair housing information to the public, including persons assisted under federal programs and applicants, participants and residents in federally-assisted housing-related programs. The requirement can be divided into two parts—who must comply with the poster requirement and what are the specific obligations those entities must fulfill.
First, landlords, real estate brokers, and salespersons must display the HUD-approved poster in a conspicuous place where it can be readily seen by anyone. A landlord that is exempt from the federal Fair Housing Act, such as an owner of single-family rental housing not owned by a corporation, limited partnership, trust, or similar business entity that is not owned in whole or part for a business purpose, is not required to post the poster. Likewise, the poster is not required to be published by an owner of a building with four or fewer rental units. The owner of a single-family rental unit does not have to display the fair housing poster if they rent the unit without using any third party in the marketing or leasing of the unit (e.g. a real estate broker or salesperson, lawyer, property manager, representative, or employee).
Assistance in getting a rugged, permanent, and reliable poster mounted is offered in the HUD summary guide entitled "The Fair Housing Poster: What Do I Need to Know."
The Fair Housing Poster Design and Content
The design of the Fair Housing poster is prescribed by the Department of Housing and Urban Development ("HUD") both as to content and organization of the information. Indeed, the Fair Housing poster required by HUD has been redesigned a couple of times over the years with the most recent redesign being the HUD Fair Housing Poster Form 928.1, which was issued for publication on October 11, 2012. Two separate versions exist depending upon if your company owns, manages or brokers housing with less than 15 units or 15 or more units. HUD also issues periodic "Unfair Housing Poster" statements. The height of the poster is required to be 11 inches and the width is required to be 17 inches provided that for entities with less than 15 units the poster may be several pages, up to ten pages. The size of the version is required to be a minimum of 11 x 18.5 inches and a maximum of 17 x 22 inches. The poster must be displayed "in an area of a building frequented by the public," such as a leasing or rental office at a property or in the lobby of the property.
HUD publishes or makes available the Fair Housing poster as well as the Fair Housing Poster order form from which the poster can be ordered.
Legal Consequences of Violating the Poster Requirement
Failure to comply with the FHA’s poster requirements can result in fines and penalties. While the threat of a fine can be an effective means to incentivize landlords to adopt fair housing policies, municipalities are also empowered to bring action against offenders and in some cases recover damages. HUD delegates enforcement to local organizations, such as the Fair Housing Agency (FHA), overseeing fair housing in a specific geographic area. The FHAs are authorized to investigate complaints , assist aggrieved individuals, and, in certain circumstances sue on behalf of individuals. In addition to enforcing FHA requirements, an FHA may also sue to enforce other local fair housing laws.
In most cases, enforcement is civil and aggrieved individuals may collect for injunctive relief, compensatory damages (e.g., lost wages, emotional pain and suffering), reasonable attorney fees and costs, punitive damages, and in some cases, as high as $100,000 per violation for discriminatory housing practices.
Compliance Best Practices
Once a compliance review is done and deficiencies are corrected, the poster should be maintained in a prominent place and regularly examined for updates. The industry standard is for building managers and on-site staff to check for updates at least every two years to determine whether a new version of the Fair Housing Poster has been issued by HUD. If the site is larger and has more than one person managing the property, someone should be designated as the person who will be responsible for checking for new postings.
If the Fair Housing Poster is updated or it has been determined that the existing poster is worn or torn, the poster should be replaced immediately. It is also important to train staff and management about the Fair Housing Poster, its importance, and a company policy on promptly replacing worn or damaged versions. Staff and not management should be charged with timely monitoring and replacement of any necessary posters.
Regular review works hand in hand with the systems you put in place to respond to complaints so that if a complaint regarding a lack of a Fair Housing Poster arises, the site can quickly produce a replacement and put in writing or otherwise document what happened to the Fair Housing Poster. Having a policy that requires prompt action upon discovering a missing or damaged Fair Housing Poster can certainly help prove your good faith in the event the poster is damaged or missing.
In addition to having the Fair Housing Poster on display, it is important to monitor approved methods of rotating the Fair Housing Poster to avoid becoming stale. Long-term sites may be tempted to take a short cut and avoid replacing the poster once every two years. The penalty for falling behind is losing the ability to use the poster as an affirmative defense and application of the pattern and practice law.
Frequently Asked Questions
A: Yes, the HUD-approved Fair Housing poster comes in more than one language. HUD does not specifically require that the posters be in multiple languages; however, state and local laws might require the use of additional languages. Common languages in terms of the location properties may be located include Spanish and Chinese. In the event that you discover the Fair Housing poster needs to be in a language other than English, you may want to consult with state or local fair housing authorities for acceptable use of supplemental posters.
A: Yes, HUD regulations do allow for the use of electronic displays of the HUD-approved Fair Housing poster. For example , a property’s digital billboard.
A: No specific date has been set for requiring the use of the new HUD-approved Fair Housing poster. However, the new HUD requirement included an exemption from the penalty phase for noncompliance until the posting and distribution requirements for the new poster were established. HUD noted that the industry should be prepared to comply with the new requirements three to six months from publication of the final rule. Therefore, a mandatory compliance date may be implemented by yearend 2016.
A: The current HUD poster is "dated, effective October 2010." The fair housing logo requires the HUD symbol to be printed in color to ensure the new HUD logo display.