DISCRIMINATION

DISCRIMINATION


Federal and California laws prohibit discrimination in the sale, rental or use of real property, whether based on sex, race, color, religion, ancestry, national origin, disability or age. These laws apply to persons who sell or rent housing or other real property and to the real estate broker or salesperson involved in such transactions.
The Unruh Civil Rights Act (California Civil Code Section 51, et seq.) declares: “All persons within the jurisdiction of this State are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
It is the intent of the Unruh Act to give all persons full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. This law applies to all aspects of real estate activities, including real estate brokerage. An owner/renter of real property cannot discriminate when offering a unit for rent.
Civil Code Section 52 provides monetary remedies to persons who have been discriminated against in violation of the Unruh Act, stating, “Whoever denies, aids, or incites denial, or makes any discrimination or distinction contrary to Section 51, Section 51.5 or 51.6 [pertaining to business establishments] is liable for each and every such offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than one thousand dollars ($1,000), and any attorney's fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.”


Age Discrimination - Senior Citizen Housing


Various cases have held that the Unruh Civil Rights Act applies to age discrimination in apartment rental and condominium properties because they are considered to be businesses subject to this act. In 1984 the Legislature enacted Civil Code Section 51.2 to clarify the holdings in the California Supreme Court cases dealing with the scope of the applicability of the Unruh Civil Rights Act. In the same bill, it enacted Civil Code Section 51.3 to establish and preserve specially designed accessible housing for senior citizens. Additionally, these provisions have been subsequently amended to comply with provisions of the federal law as it pertains to senior citizen housing developments.
Section 51.2 states, in part, that: “Section 51 shall be construed to prohibit a business establishment from discriminating in the sale or rental of housing based upon age. Where accommodations are designed to meet the physical and social needs of senior citizens, a business establishment may establish and preserve such housing for senior citizens, pursuant to Section 51.3, except housing as to which Section 51.3 is preempted by the prohibitions in the federal Fair Housing Amendments Act of 1988 (P.L. 100-430 ) and implementing regulations against discrimination on the basis of familial status...”
Section 51.3 provides definitions and criteria to be applied for the express allowance for enforcement of legal documents that provide for age limitations for senior citizens housing. This law applies to condominium, stock cooperative, limited-equity housing cooperative, planned development or multi-family residential rental property developed for and initially put into use as housing for senior citizens or substantially rehabilitated or renovated for, and immediately put into use as housing for senior citizens, as described in Section 51.3. The term “senior citizen” is defined as a person 62 years or older or one who is 55 years or older in a senior citizen housing development. A senior citizen housing development is a residential development built, substantially rehabilitated, or substantially renovated for senior citizens and which consists of at least 35 dwelling units.
The law provides standards for the restrictions used for senior citizen housing developments. The restrictions cannot limit occupancy more strictly than to senior citizen residents and “a qualified permanent resident,” i.e., a younger spouse or cohabitant or, as an alternative to a spouse, any person who provides primary physical or financial support to the senior citizen. In any such case, the lower age limit is 45 years. The qualified permanent resident can remain in residency after the death of the senior citizen or upon dissolution of a marriage with a senior citizen.
Housing projects constructed before February 8, 1982, that meet all of the criteria for senior citizen housing specified in Section 51.3 may be established and preserved for senior citizens without the housing development being specifically designed to meet the physical and social needs of senior citizens.

The Unruh Act does not apply to mobilehome developments.
Under the Unruh Act, as well as under case law, restrictions or prohibitions by covenant or condition in written instruments, such as CC&R's, on use, occupancy or transfer of title to real property limiting acquisition, use, occupation of real property because of any of the prohibited classifications are void. (Civil Code Section 51.3)


Housing Discrimination


The Fair Employment and Housing Act (Government Code Section 12900, et seq.) applies to owners of specified types of property, to real estate brokers and salespersons, to other agents and to financial institutions. Sections 12955 and 12980 - 12989.3 specifically cover housing discrimination. The law prohibits discrimination in supplying housing accommodations because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, age, familial status, source of income or disability. (The phrase “Housing accommodations” is defined as improved or unimproved real property used or intended to be used as a residence by the owner and which consists of not more than four dwelling units. The definition also includes four or fewer owner-occupied housing units that secure a home improvement loan.) The law forbids such discrimination in the sale, rental, lease or financing of practically all types of housing, and establishes methods of investigating, preventing and remedying violations. However, the provisions of Sections 51.2 and 51.3 of the Civil Code, as described above, which establish permissible age criteria for a senior citizen retirement community as an exception to the basic prohibition against age discrimination in housing, also apply to this Act.
Housing discrimination under the Fair Employment and Housing Act is handled by administrative procedures. Complaints are directed to the Department of Fair Employment and Housing and are investigated by its staff. If the Department decides that the law has been violated, and if the person accused of violating the law cannot be persuaded to correct the violation, the Department may file an accusation with the Fair Employment and Housing Commission or bring an action in the Superior Court for an injunction. If the Fair Employment and Housing Commission, after hearing, finds a violation of the law, it may order the sale or rental of the accommodation or like accommodations, if available. It may order financial assistance terms, conditions or privileges previously denied. In addition, it may order the payment of a civil penalty to the complainant not to exceed $10,000. The civil penalty may be increased if the respondent has been adjudged in a separate accusation to have committed prior violations. The commission may also order the payment of actual damages as well as injunctive or other equitable relief. The Department may be required to do a compliance review to determine whether its order is being carried out.
The Fair Employment and Housing Act applies to all housing accommodations but does not apply to renting or leasing to a roomer or boarder in a single-family house, provided that no more than one roomer or boarder is to live within the household.
The term “discrimination” includes refusal to sell, rent, or lease housing accommodations, including inferior terms, misrepresentation as to availability, cancellations, etc. For sale or rent advertisements containing discriminatory information are prohibited. Also, discrimination includes failure to design or build a multifamily dwelling of four or more units in a manner that allows disabled persons access and use.


Other State Laws and Regulations


The Housing Financial Discrimination Act of 1977, also known as the Holden Act (Part 6 of Division 24 of the Health and Safety Code, Section 35800 et seq.), prohibits discriminatory loan practices on the part of financial institutions (banks, savings and loan associations, or other financial institutions, including mortgage loan brokers, mortgage bankers and public agencies which regularly make, arrange, or purchase loans for the purchase, construction, rehabilitation, improvement, or refinancing of housing accommodations).
No financial institution shall discriminate in their financial assistance wholly or partly on the basis of consideration of conditions, characteristics or trends in a neighborhood or geographic area unless the financial institution can demonstrate that such consideration in a particular case is necessary to avoid an unsafe and unsound business practice.
The Secretary of the Business, Transportation and Housing Agency has issued rules, regulations and guidelines for enforcement of this law and is empowered to investigate complaints regarding lending patterns and practices. Investigation of complaints has been delegated to the state agency which regulates the particular

financial institution involved. If a violation is found, the Secretary can order that the loan be made on nondiscriminatory terms or impose a fine of up to $1,000.
Financial institutions are required to notify loan applicants of the existence of this law. Business and Professions Code Section 125.6 contains disciplinary provisions for discriminatory acts by any person licensed under the provisions of the Business and Professions Code.
Commissioner's Regulations 2725(f), 2780 and 2781 deal with discriminatory conduct and proper supervision of real estate licensees in that regard.
Business and Professions Code Section 10177(l) includes the practice of “block busting” as grounds for discipline of a real estate license.


Notice of Discriminatory Restrictions


Effective January, 2000, a county recorder, title insurance company, escrow company, or real estate licensee who provides a declaration, governing documents or deed to any person must provide a specified statement about the illegality of discriminatory restrictions and the right of homeowners to have such language removed. The statement must be contained in either a cover page placed over the document or a stamp on the first page of the document.


The Federal Rules


The Federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, provides an all-encompassing set of rules prohibiting discrimination on the part of owners of real property and their agents. This law applies to all sales or rentals of residences through the facilities of real estate licensees and to publication, posting, mailing or advertising in violation of this law. Direct refusal of an owner to sell a home because of race is, of course, a violation. This law applies to most rental of dwelling units, except it does not apply to the rental of rooms or units in dwellings of four or fewer living quarters if the owner actually occupies one of the living units as his residence.
Real estate licensees are in violation of this law if they commit any of the prohibited actions, even if there was no intent to discriminate, if the result is proscribed discrimination. The law applies to “blockbusting” and steering of home buyers to different areas on the basis of prohibited classifications.
Wherever federal law is applicable, it is paramount. Title VIII declares that its purpose is to provide “within constitutional limitations.. for fair housing throughout the United States.” In short, this law applies as thoroughly and as widely as is permissible under the broadest applicable provision of the Constitution and applies even to the most local transactions. This law is enforced by the Secretary of Housing and Urban Development or by civil actions by aggrieved parties or by an attorney general in federal or state court.
Another provision of Title VIII prohibits denial of membership or participation in a real estate board or multiple listing service to a person because of race, color, religion or national origin, or discrimination against a person in terms or conditions of membership. The federal law under Title VIII and relevant cases leads to the following general conclusion for real estate licensees: do not discriminate and, to that end, do not accept restrictive listings or make, print, or publish any notice, statement or advertisement with respect to a sale or rental of a dwelling which suggests discrimination because of race, color, religion, national origin or any other of the prohibited classifications.
The sum of the matter is that there are both a number of state laws and a federal law that apply to discrimination in real estate transactions. Every prohibition of the Unruh Act and the California Fair Employment and Housing Acts remains in effect, and what discrimination they do not prohibit, federal law does. Thus, no one may refuse to sell, lease or rent to another because of race or color, or on the basis of any other prohibited classifications, and no real estate licensee may do so, regardless of the principal's direction. If a principal seeks to restrict a listing on the basis of any of the prohibited classifications, the licensee must refuse to accept the listing.