Fair Housing — Real Property

A deed from the 1940s carries a promise. This land shall never be sold or occupied by any person not of the Caucasian race. Decades later one owner sells to a Black family, and the neighbor goes to court asking for an injunction to stop the sale. Start with the question the exam actually asks. Is that covenant unconstitutional?

No. And that answer is the whole point of this topic. A covenant is a private promise, and the Constitution does not govern private promises. But the moment a judge is asked to enforce one, a branch of government is being asked to put its power behind the discrimination. That is state action, and now the Constitution does apply. The covenant is not unconstitutional. Enforcing it is.

Here is the route. Three bodies of law attack housing discrimination and they do not overlap, so we take them in order. The Fourteenth Amendment, and where state action begins. The Fair Housing Act, its seven protected classes, the practices it forbids, and its narrow exemptions. The Civil Rights Act of 1866, which has no exemptions at all. Then disability, and finally retaliation.

Three separate bodies of law attack housing discrimination, and they do not overlap. Keep them straight and these problems solve themselves. The Fourteenth Amendment's Equal Protection Clause, powerful but reaching only government. The federal Fair Housing Act, which reaches private landlords, sellers, and lenders, but carries narrow exemptions. And the Civil Rights Act of 1866, § 1982, which bars all racial discrimination in property with no exemptions at all.

So open every fair-housing question with three questions of your own. Who is discriminating, the government or a private party? On what basis, race, or another protected class? And in what transaction, a sale, a rental, financing, or an advertisement? Answer those and the right regime picks itself.

Take the Constitution first. No state shall deny anyone the equal protection of the laws. Notice the word state. The clause is a leash on government, not on private people. A private landlord who refuses to rent because of race has done something deeply wrong, and it violates the Fair Housing Act and § 1982. But it does not by itself violate the Fourteenth Amendment, because no government actor is involved.

State action is the single most tested idea in this corner of the topic. And the catch is that government gets involved in surprising ways. When a court, a legislature, or a public agency lends its power to private discrimination, the line is crossed and the Constitution kicks in. Which is exactly what our covenant does.

Writing the covenant is private. There is no state action in two neighbors making a promise. The turning point is enforcement. If a court issues an injunction or awards damages to make the covenant stick, the court has put the state's power behind the discrimination. That judicial enforcement is state action, and it violates the Equal Protection Clause.

So racially restrictive covenants are judicially unenforceable. No injunction to stop a sale, no damages against the owner who sells. On top of that the Fair Housing Act makes it unlawful to publish a statement of racial preference, and § 1982 independently bars the discrimination. Dead letters, three ways over. But commit the distinction to memory. The covenant is not unconstitutional. Enforcing it is.

A cousin doctrine sits next door. A discriminatory restraint on alienation limits an owner's power to sell along protected-class lines. This parcel may never be conveyed to anyone who is not white. Void on two independent grounds. It is an unreasonable restraint that offends public policy, because it locks land up. And it is unenforceable discrimination.

The court's move is to strike the offending restraint and leave the estate fully and freely alienable. A deed grants Blackacre so long as it is never sold to a non-Christian, and a later owner wants to sell to a Muslim buyer. The condition is not enforced, the sale goes through, and the estate is treated as an unconditional fee.

Now the Fair Housing Act, which reaches what the Constitution cannot. An ordinary landlord, seller, broker, or lender. Under § 3604 it is unlawful, because of a protected class, to refuse to sell or rent, or otherwise to make a dwelling unavailable. To set different terms or services. To publish any statement indicating a discriminatory preference. Or to represent falsely that a dwelling is not available.

Seven express classes, and memorize them as a set. Race and color. Religion. National origin, meaning where a person or their ancestors came from. Sex. Familial status, meaning a household with a child under 18, plus pregnant persons and anyone securing custody. And disability.

Now notice what is not on that federal list. Age. Marital status. Source of income. Many state and local laws add all three, but they are not federal classes. Sexual orientation and gender identity are not express federal classes either, though many state and local laws protect them. For the exam, rely on the seven.

One more definition to carry. Disability means a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or being regarded as having one. Current illegal drug use is not covered.

The Act forbids far more than a flat refusal, and the exam uses the historical labels, so learn the vocabulary. Blockbusting, inducing owners to sell by telling them that protected-class residents are moving into the neighborhood. Steering, guiding buyers or renters toward or away from particular areas because of a protected class.

Redlining, denying loans, insurance, or services to a neighborhood because of its protected-class makeup, which is financing discrimination under § 3605. And interference or intimidation against anyone exercising fair-housing rights, under § 3617. Plus the everyday ones. Different rent, larger deposits, worse maintenance.

There are two ways to prove a violation. Disparate treatment is intentional discrimination, shown by direct evidence or by the pattern of the decision. Disparate impact is subtler. A facially neutral policy that falls disproportionately on a protected group. A blanket refusal to rent to anyone with a criminal record, or a tight occupancy cap, can do that with no discriminatory intent.

The Supreme Court confirmed in 2015 that disparate-impact claims are available. The plaintiff must identify a specific policy causing a real statistical disparity. The provider then defends by showing the policy serves a substantial, legitimate interest that no less-discriminatory alternative would serve. Victims may file an administrative complaint, generally within one year, or sue in federal court, generally within two years.

Because the Act reaches private conduct, Congress carved out narrow exemptions for the smallest, most personal transactions. A private owner of no more than three single-family houses, selling or renting one, so long as no broker is used and no discriminatory advertising appears. The owner-occupied exemption, for a building of four or fewer units where the owner actually lives in one.

Religious organizations and private clubs, for a noncommercial preference for their own members, though membership itself cannot be limited by race, color, or national origin. And housing for older persons, which lifts only the familial-status rule and leaves every other class protected.

Now the two asterisks that sit on every one of those exemptions, and they decide questions. First, the ban on discriminatory advertising and statements, § 3604(c), applies to everyone. Even the owner-occupied landlord. Even the single-home seller. Posting a whites-only or a no-children notice violates the Act no matter how small the building.

Second, and this is the bigger one. Racial discrimination is never exempt. Under the Civil Rights Act of 1866, all citizens have the same right as white citizens to inherit, purchase, lease, sell, hold, and convey property. The Supreme Court has read § 1982 to bar all racial discrimination in property, private as well as governmental. It has no exemptions of any kind, and it catches exactly what a Fair Housing Act exemption lets slip.

Disability goes further than the other classes. It is not enough for a provider to avoid outright discrimination. The provider must take affirmative steps so a disabled tenant can actually use and enjoy the home. There are two duties, students confuse them constantly, and they split on two axes. What is being changed, and who pays.

A reasonable accommodation changes a rule, policy, or service, and the housing provider pays. Waiving a no-pets rule for an assistance animal. Assigning an accessible parking space near the door. A reasonable modification changes the physical premises, and the tenant pays. A ramp, a widened doorway, bathroom grab bars. Policy change, landlord pays. Physical change, tenant pays.

Each has a limit. An accommodation must be necessary and reasonable, with no undue burden and no fundamental alteration. A modification must be reasonable, and the landlord may ask that the interior be restored at move-out. There is also a design duty. New multifamily buildings with four or more units, first occupied after March 1991, must be built with basic accessibility.

And a recurring trap. An assistance or service animal is not a pet. A no-pets policy and any pet deposit give way to a reasonable accommodation, and the provider generally cannot charge a pet fee for it.

Last, a shift from getting into housing to staying in it. Retaliatory eviction. Habitability protections are only as good as a tenant's willingness to complain. So a landlord may not evict, refuse to renew, raise the rent, or cut services in retaliation for a tenant's good-faith exercise of a legal right. Classically, reporting a building-code violation, or organizing a tenants' union.

Most states apply a rebuttable presumption of retaliation when the adverse action follows soon after the protected activity. A Franklin statute presumes it when the landlord acts within 180 days of a good-faith complaint to a government agency. A tenant reports a broken heater on March 1, and on April 1 the landlord serves a notice to quit. Retaliation is presumed.

He rebuts by proving a genuine, lawful reason. Nonpayment of rent. Or an across-the-board rent increase, documented and planned before any complaint, because that reason is independent of the tenant's activity. Spot the protected activity, check the timing, then ask whether the stated reason is truly independent.

A word on authorities, because this episode named no cases, and that was deliberate. NextGen questions hand you a landlord, a deed, or an advertisement and ask which law reaches it. They will not ask you for case names. And this is a starred topic, so no statute is coming with the question.

If you keep only three, keep these. The Fourteenth Amendment, which needs state action and never reaches a purely private landlord. § 3604, the core prohibition and the source of the advertising ban. And § 1982, the race backstop from 1866, which is the answer whenever an exemption seems to let race discrimination through.

Now the traps, straight from the examiners' favorites list. One. Calling a racially restrictive covenant unconstitutional. It is private and lawful to write. It is the court's enforcement that is state action. Two. Assuming the Fourteenth Amendment reaches a private landlord. It does not, absent state action. Three. Forgetting the two asterisks on every exemption, the advertising ban and § 1982.

Four. Mixing up accommodation and modification. Policy change, landlord pays. Physical change, tenant pays. Five. Treating age, marital status, or source of income as federal classes. They are not, though state and local law may add them. Six. Treating a service or assistance animal as a pet subject to a no-pets rule or a pet deposit. It is a reasonable accommodation.

Seven. Extending disability to current illegal drug use. The Act excludes it. And one habit worth building. Read the call to see which half of the topic you are in. Getting into housing is the Fair Housing Act and § 1982. Staying in it is retaliation and habitability.

Time for the quick check, straight from the BARGO question bank. An owner of a single-family house decides to sell it himself, with no broker and no advertisement. The Ellison family, who are Black, submit the highest offer. He refuses them, tells a friend he does not want to sell his home to a Black family, and sells to a lower bidder instead.

He points out that his sale fits squarely within the Fair Housing Act's single-family-home exemption. Does any federal law still reach the refusal? Option one. No, because the transaction fits neatly within that exemption. Option two. Yes, because the Civil Rights Act of 1866 bars all racial discrimination in property with no exemptions. Option three. Yes, but only if the Ellisons can show the owner is really a professional real estate dealer. Pause here if you want a moment.

The answer is option two. He is right about the Fair Housing Act, and it does not help him. Section 1982 independently bars all racial discrimination in the sale or rental of property, and it has no exemptions. Option one is the trap the question is built around. It assumes the exemption ends the matter, when § 1982 reaches exactly this sale.

Option three invents a limit that is not there. Section 1982 reaches any person who discriminates by race in a property transaction, dealer or not. That is the lesson worth carrying out of this episode. Race discrimination in housing is never exempt. There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. Three regimes, and they do not overlap. The Fourteenth Amendment needs state action, the Fair Housing Act reaches private conduct with narrow exemptions, and § 1982 reaches all race discrimination with none. Two. A racially restrictive covenant is lawful to write and judicially unenforceable, because enforcement is the state action.

Three. Seven federal classes, and age, marital status, and source of income are not among them. Four. Every exemption carries two asterisks. The advertising ban binds everyone, and race is never exempt. Five. For disability, sort the request. Policy change, accommodation, landlord pays. Physical change, modification, tenant pays.

Which is why our neighbor walks out of court with nothing. The promise in that deed was real, and it was written down, and no judge in the country will lift a finger to enforce it. Next time, Easements and Licenses.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.