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Wednesday, March 20, 2013

The Fair Housing Act (FHA): A Legal Overview

Jody Feder
Legislative Attorney

The Fair Housing Act (FHA) was enacted “to provide, within constitutional limitations, for fair housing throughout the United States.” The original 1968 act prohibited discrimination on the basis of “race, color, religion, or national origin” in the sale or rental of housing, the financing of housing, or the provision of brokerage services. In 1974, the act was amended to add sex discrimination to the list of prohibited activities. Likewise, in 1988 the act was amended to prohibit discrimination on the additional grounds of physical and mental handicap, as well as familial status.

Although the FHA has been amended by a series of other laws in recent years, there has not been a major overhaul of the act since 1988. However, legislation that would amend the FHA is routinely introduced in Congress.

The FHA may be enforced in varying ways by the Attorney General, by the Department of Housing and Urban Development (HUD), and by victims of discrimination. The act’s coverage has been extended to “residential real estate-related transactions,” which include both the “making [and] purchasing of loans ... secured by residential real estate [and] the selling, brokering, or appraising of residential real property.” Thus, the provisions of the FHA extend to the secondary mortgage market.

In general, the FHA applies to all sorts of housing, public and private, including single family homes, apartments, condominiums, mobile homes, and others. However, the act includes some exemptions. For example, the FHA does not “limit[] the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.”

In 2011, the Supreme Court granted review in Magner v. Gallagher, a case that involved the question of whether individuals may bring disparate impact claims under the FHA. Shortly thereafter, HUD issued proposed regulations that would formally prohibit practices that have a discriminatory effect, as well as establish uniform standards for determining when such practices violate the FHA. Subsequently, Magner v. Gallagher was dismissed per agreement of the parties involved in the case, but the Court is currently considering whether to take up review in another FHA disparate impact case, Mount Holly v. Mount Holly Garden Citizens in Action, Inc. In the meantime, HUD finalized its disparate impact regulations in early 2013.

Date of Report: March 8, 2013
Number of Pages: 20
Order Number: 95-710
Price: $29.95

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