HUD announced new proposed fair housing rules on February 9, 2023 in the federal register. 

To remind you, fair housing rules are anti-discrimination laws for our nation's housing renters, purchers, and occupants. 

This rule is about Affirmatively Furthering Fair Housing, which requires fair housing analysis for local communities, states, and public housing agencies and requires them to set ambitious goals to address fair housing issues in their communities.

In summary, the proposed rule creates new levels of accountability and scrutiny on local communities and housing agencies. However, the big issue is that the rule requires program participants to set fair housing goals, but it fails to advise what that means and we are sure, in today's society, it means diametrically opposed concepts to different groups.

The comment period is open until April 10, 2023 - you can comment at the Federal eRulemaking Portal at www.regulations.gov.

New York tenants will be receiving new notices about their rights to reasonable modifications and accommodations for persons with disabilities as of today. 

The Division of Human Rights has officially adopted 9 NYCRR 466.15 - see our prior blog on the topic here. 

The new law places a tremendous onus, with awesome exposure, on the following people: "the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof." The law applies to both private property and publicly-assisted housing. 

There is a special section in the law just for real estate brokers, who are now obligated to provide the notice at the first point of substantive contact.

Plus, every obligee must also prominently and conspicuously display a link to the notice "on the homepage of such website." Unfortunately, the link, which is supposed to "be made available by the Division," is not so available. 

Nonetheless, here is the official notice and it's language (if you haven't realized it yet, housing providers and their real estate brokers better get up to speed on providing reasonable accommodations and modifications today. Failure-to-accommodate lawsuits are about to be filed with record speed / frequency): 

NOTICE DISCLOSING TENANTS’ RIGHTS TO REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES Reasonable Accommodations The New York State Human Rights Law requires housing providers to make reasonable accommodations or modifications to a building or living space to meet the needs of people with disabilities. For example, if you have a physical, mental, or medical impairment, you can ask your housing provider to make the common areas of your building accessible, or to change certain policies to meet your needs.

To request a reasonable accommodation, you should contact your property manager by calling ______________ or ______________, or by e-mailing ______________. (note: brokers may delete "by calling ______________ or ______________, or by e-mailing ______________.)

You will need to inform your housing provider that you have a disability or health problem that interferes with your use of housing, and that your request for accommodation may be necessary to provide you equal access and opportunity to use and enjoy your housing or the amenities and services normally offered by your housing provider. A housing provider may request medical information, when necessary to support that there is a covered disability and that the need for the accommodation is disability related. 

If you believe that you have been denied a reasonable accommodation for your disability, or that you were denied housing or retaliated against because you requested a reasonable accommodation, you can file a complaint with the New York State Division of Human Rights as described at the end of this notice.

Specifically, if you have a physical, mental, or medical impairment, you can request:

• Permission to change the interior of your housing unit to make it accessible (however, you are required to pay for these modifications, and in the case of a rental your housing provider may require that you restore the unit to its original condition when you move out);
• Changes to your housing provider’s rules, policies, practices, or services;
• Changes to common areas of the building so you have an equal opportunity to use the building. The New York State Human Rights Law requires housing providers to pay for reasonable modifications to common use areas.

Examples of reasonable modifications and accommodations that may be requested under the New York State Human Rights Law include:

• If you have a mobility impairment, your housing provider may be required to provide you with a ramp or other reasonable means to permit you to enter and exit the building. 
• If your healthcare provider provides documentation that having an animal will assist with your disability, you should be permitted to have the animal in your home despite a “no pet” rule.
• If you need grab bars in your bathroom, you can request permission to install them at your own expense. If your housing was built for first occupancy after March 13, 1991 and the walls need to be reinforced for grab bars, your housing provider must pay for that to be done.
• If you have an impairment that requires a parking space close to your unit, you can request your housing provider to provide you with that parking space, or place you at the top of a waiting list if no adjacent spot is available. 
• If you have a visual impairment and require printed notices in an alternative format such as large print font, or need notices to be made available to you electronically, you can request that accommodation from your landlord.

Required Accessibility Standards 

All buildings constructed for use after March 13, 1991, are required to meet the following standards:

• Public and common areas must be readily accessible to and usable by persons with disabilities;
• All doors must be sufficiently wide to allow passage by persons in wheelchairs; and 
• All multi-family buildings must contain accessible passageways, fixtures, outlets, thermostats, bathrooms, and kitchens.

If you believe that your building does not meet the required accessibility standards, you can file a complaint with the New York State Division of Human Rights.

How to File a Complaint

A complaint must be filed with the Division within one year of the alleged discriminatory act or in court within three years of the alleged discriminatory act. You can find more information on your rights, and on the procedures for filing a complaint, by going to www.dhr.ny.gov, or by calling 1-888-392-3644. You can obtain a complaint form on the website, or one can be e-mailed or mailed to you. You can also call or e-mail a Division regional office. The regional offices are listed on the website.

Discrimination in real estate is illegal throughout the United States and in certain states, like New York, there are even greater protections, rights, and damages available to victims.

Whether you were discriminated against by a seller, landlord, tenant co-op, condo, HOA, lender, real estate broker / salesperson, or property manager, you are entitled to compensation. This is true in housing and at places of public accommodation (i.e., shopping center, professional office, retail store, educational institution, recreational facility, and service center). This is often even true if the discrimination was unintentional or caused by the perpetrator's implicit biases.

Anti-discrimination rights and protections entitle victims to sue for compensation if discrimination occurred because of your protected status / protected class, which statuses / classes vary throughout the United States, but may include your race, ethnic background, visible traits (hair texture, hairstyle, donning of religious garments or items), color, national origin, citizenship status, alienage status, immigration status, lawful source of income (subsidy recipient status), occupation, religion, creed, marital status, partnership status, sex, gender, sexual orientation, gender identity or expression (transgender status), domestic violence victim status, stalking victim status, sex offense victim status, familial status, pregnancy, presence of children, handicap (disability), age, military status, uniformed service, veteran status, first responder status, arrest record, and sealed conviction record.

The law prevents real estate / housing providers from changing the terms, conditions, privileges, and/or availability of property based on your protected class status. It requires real estate brokers / salespersons to give you written disclosures that advise you of your rights. It prevents you from being treated differently from others where only the terms of your offer matter, not who you are.

If you are handicapped / disabled, you are also entitled to receive reasonable accommodations (change to policies / procedures / rules) and reasonable modification (change to structure) so that you can equally use and enjoy property. Plus, your actual diagnosis need not be fully revealed and can remain confidential when you seek such an accommodation / modification. Better yet, the cost of the accommodation cannot be charged to you, and in places like New York City, this is also true for the cost of modifications. The most common handicap / disability cases that we see involve service animals / emotional support animals in no pet properties, preferential / parking and ingress / egress ramps for mobility impairments, and other failure-to-accommodate cases. We are also involved in ADA failure-to-remove barrier cases and more. When it comes to handicapped / disabled people, it's all about providing access. 

If you receive subsidies, like Section 8 (Housing Choice Vouchers), or you are unemployed (i.e., retired, spousal / child support recipient, trust fund baby, student, disabled), your source of income cannot impact your housing choices. You are protected from offensive signage, improper applications, and/or wrongful questionnaires if they inquire about your employment status, request your W-2, or even solicit a letter of employment. Simply, seeing your voucher cannot be a prerequisite to seeing / viewing an apartment. Where you get the rent should be no one's business. 

Don't be afraid to speak-up. If you are advancing a fair housing and/or anti-discrimination right, you are protected from retaliation. Even if it is ultimately found that you were not discriminated against, you can nonetheless be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination rights. This is not just true if you are advancing your own rights, it also applies if you are an ally who is aiding and/or encouraging someone else to exercise their rights to be free from discrimination.

Fair housing laws make housing available to everyone without stigma, loss of dignity, or other harms. If you are a victim, you can recover compensatory damages (being made whole), punitive damages (punishment damages), and your attorneys' fees. The perpetrator can lose their license (if licensed), be required to take trainings, and be ordered to stop their offensive behavior. There are fines and more. Discrimination is wrong and must be stopped.

On March 16, 2022, the NYS Division of Human Rights published Revised Rule Making, HRT-15-21-00005-RP (proposed 19 NYCRR 466.15), with respect to the notice that tenants must receive, which explains their rights to receive reasonable modifications and accommodations in housing. 

The proposed regulation provides that:

• Real Estate Brokers are charged with making this disclosure "[u]pon the first substantive contact." 
• Housing providers are charged with providing this disclosure to current and new tenants. 
• Housing providers must post the notice on all of their websites.

Here is what the notice should state:

NOTICE DISCLOSING TENANTS’ RIGHTS TO REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES 

Reasonable Accommodations

The New York State Human Rights Law requires housing providers to make reasonable accommodations or modifications to a building or living space to meet the needs of people with disabilities.

For example, if you have a physical, mental, or medical impairment, you can ask your housing provider to make the common areas of your building accessible, or to change certain policies to meet your needs.

To request a reasonable accommodation, you should contact your property manager by calling —or —, or by e-mailing — * . You will need to inform your housing provider that you have a disability or health problem that interferes with your use of housing, and that your request for accommodation may be necessary to provide you equal access and opportunity to use and enjoy your housing or the amenities and services normally offered by your housing provider.

A housing provider may request medical information, when necessary to support that there is a covered disability and that the need for the accommodation is disability related.

If you believe that you have been denied a reasonable accommodation for your disability, or that you were denied housing or retaliated against because you requested a reasonable accommodation, you can file a complaint with the New York State Division of Human Rights as described at the end of this notice. 

Specifically, if you have a physical, mental, or medical impairment, you can request: 

• Permission to change the interior of your housing unit to make it accessible (however, you are required to pay for these modifications, and in the case of a rental your housing provider may require that you restore the unit to its original condition when you move out); 
• Changes to your housing provider’s rules, policies, practices, or services;
• Changes to common areas of the building so you have an equal opportunity to use the building. The New York State Human Rights Law requires housing providers to pay for reasonable modifications to common use areas.

Examples of reasonable modifications and accommodations that may be requested under the New York State Human Rights Law include:

• If you have a mobility impairment, your housing provider may be required to provide you with a ramp or other reasonable means to permit you to enter and exit the building.
• If your healthcare provider provides documentation that having an animal will assist with your disability, you should be permitted to have the animal in your home despite a “no pet” rule.
• If you need grab bars in your bathroom, you can request permission to install them at your own expense.
• If your housing was built for first occupancy after March 13, 1991 and the walls need to be reinforced for grab bars, your housing provider must pay for that to be done.
• If you have an impairment that requires a parking space close to your unit, you can request your housing provider to provide you with that parking space, or place you at the top of a waiting list if no adjacent spot is available.
• If you have a visual impairment and require printed notices in an alternative format such as large print font, or need notices to be made available to you electronically, you can request that accommodation from your landlord.

Required Accessibility Standards All buildings constructed for use after March 13, 1991, are required to meet the following standards:

• Public and common areas must be readily accessible to and usable by persons with disabilities;
• All doors must be sufficiently wide to allow passage by persons in wheelchairs; and
• All multi-family buildings must contain accessible passageways, fixtures, outlets, thermostats, bathrooms, and kitchens.

If you believe that your building does not meet the required accessibility standards, you can file a complaint with the New York State Division of Human Rights.

How to File a Complaint A complaint must be filed with the Division within one year of the alleged discriminatory act. You can find more information on your rights, and on the procedures for filing a complaint, by going to www.dhr.ny.gov, or by calling 1-888-392-3644 with questions about your rights. You can obtain a complaint form on the website, or one can be e-mailed or mailed to you. You can also call or e-mail a Division regional office. The regional offices are listed on the website.

The public can comment on this Revised Rule Making until April 30, 2022 by email to  Caroline.Downey@dhr.ny.gov with subject of I.D. No. HRT-15-21-00005-RP

Write down December 21, 2021 as the date that real estate brokerage was changed forever in NYS. That is when S2131A was signed into law and became effective. 

If you are a real estate salesperson or an associate real estate broker at a brokerage firm that is unaware of this new law, it's time to change brokers. 

This law requires your broker to institute standardized operating procedures for the prerequisites prospective homebuyers shall meet and to submit such procedures to the Department of State. 

If procedures are changed, whatsoever, the new procedures shall be submitted within 30 days of the change. 

Plus, the law requires the Secretary of State to promulgate regulations and the combined law / regulations shall, at a minimum, require brokerages to have a policy as to: 

1. Whether prospective clients shall show identification; 
2. Whether an exclusive broker agreement is required; &
3. Whether pre-approval for a mortgage loan is required. 

If you are a salesperson who is operating under a brokerage's license that fails to satisfy this new submission of procedures requirements, or if you fail to follow the procedures, you are subject to a license law violation and penalty, including revocation or suspension of your license. 

This is very serious and will also work as important evidence in any and every fair housing / discrimination litigation moving forward. 

Starting on February 19, 2022, the maximum fine for real estate license law violations has been doubled from $1,000 to $2,000 by S945B. Brokers beware. 

Further, 50% of these fines, for violating Article 12-A and 19 NYCRR 175, will be used to establish an Anti-Discrimination in Housing Fund (ADHF). 

The ADHF shall be controlled by the NYS Attorney General and may be used for:

• Fair housing testing;
• Grants to duly applying county, city, town or village human rights commissions;
• Grants to duly applying county, city, town or village agencies specializing in the prevention of unlawful discrimination in housing; &
• Grants to duly applying not-for-profit agencies specializing in the prevention of unlawful discrimination in housing. 

Starting on June 19, 2022, real estate licensees in NYS will be required to complete "at least two hours of instruction pertaining to implicit bias awareness and understanding" as part of their 22.5 hours of continuing education to renew their license because of a new law, S538B. 

According to the law, "'implicit bias' shall mean the attitudes or stereotypes that affect an individual's understanding, actions and decisions in an unconscious manner."

Lieb School is ready and already offers an implicit bias course that counts towards the fair housing and discrimination requirements. To comply with the new law, we are re-submitting this course to count towards the required implicit bias training as well. 

Starting on April 20, 2022, real estate licensees in NYS will be required to complete "at least two hours of cultural competency training" as part of their 22.5 hours of continuing education to renew their license because of a new law, S979A. 

Lieb School is on top of making sure that its students lead the industry, having already drafted curriculum to satisfy this requirement. Our course will educate licensees on the following subtopics:

1. Right to Social Benefits of Integration
2. Misunderstanding in Cultural Competency
3. 4 Elements in Developing Cultural Competency
4. Friction Between Cultural Sensitivity & Discrimination Law
5. Cultural Norms, Preferences, & Challenges
6. Cultural Competence Techniques

As of 12/21/2021, all state agencies administering housing programs or enforcing housing laws and all localities administering housing programs and receiving funds from the state for such activities are now required to affirmatively further fair housing.

What this means is that the state and local governments will actively seek to create more diverse, inclusive communities. They will do this, according to the new law (S1353A), by:

1. Identifying and overcoming patterns of residential segregation & housing discrimination;
2. Eradicating racially or ethnically concentrated areas of poverty;
3. Reducing disparities in access to opportunities;
4. Eliminating disproportionate housing needs;
5. Providing the public reasonable & regular opportunities to comment on fair housing issues & participate in the development & advancement of affirmative fair housing policy; &
6. Encouraging & maintaining compliance with Article 15 of the Executive law & any other applicable anti-discrimination or fair housing law. 

Now there is another initiative by New York State to combat discrimination in real estate.

Effective as of December 21, 2021 a $30 fee has been added for real estate broker / salespersons licenses to cover the costs of the Attorney General to fund fair housing testing throughout NYS. 

Senate Bill S32133A adds a surcharge to the fee paid for issuing or reissuing a real estate broker or salesmen license. 

We are always updating our CE courses at Lieb School because the law is constantly changing. 

While the law changes on every topic, there is no field that seems to be evolving today more than anti-discrimination law. So, we thought it important to share our updated definitive lists of protected classes within downstate New York for Fair Housing and Discrimination Law.

Note - While these lists are similar for employment discrimination law, there are minor differences in protections between the two fields and you should consult with an attorney should you have any questions.

Fair Housing Act:

1. Race
2. Color
3. National origin
4. Religion
5. Sex
6. Familial status
7. Handicap

On 12/23/2020, the NYS Department of State proposed mandating fair housing education as a condition of license renewal for appraisers and assistant appraisers.  

The proposed regulations would be at 19 NYCRR 1107.2(b), 19 NYCRR 1107.33(a), (b), and (c), and 19 NYCRR 1107.34. 

In substance, the regulations would require that every licensed or certified appraiser complete an approved course of study in Fair Housing and Fair Lending every two years with the following course topics: 

a) 7 Hour Introduction to Fair Housing and Fair Lending Instruction

b) 4 Hour Update on Fair Housing and Fair Lending Instruction

Now, we are in the public comment period until 02/21/2021. To make your comments, email the regulator at david.mossberg@dos.ny.gov

While we are very encouraged by increased fair housing and anti-discrimination trainings being required in NYS, we are concerned with how specific the subtopics of education are and how they offer no explanation as to what exactly the government is looking for within each subtopic. We are also concerned about how this requirement will impact federal government contractor appraisers who must follow Executive Order 13950 on Combating Race and Sex Stereotyping and are therefore restricted on engaging in trainings on unconscious bias or implicit bias to the extent that "it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously," per the US Department of Labor. We hope that these issues will be addressed before this regulation is finalized. 

To the specific subtopic requirements, under topic a), the subtopics are as follows:

(1) Fair housing, fair lending requirements, and the history of lending 2 hours

(a) What is fair housing?

(b) What is fair lending?

(c) Roadblocks to fair housing/lending

(d) Federal laws Civil Rights Act of 1866

Civil Rights Act of 1964 Fair Housing Act of 1968

Supreme Court

The Housing and Community Development Act of 1974

The Fair Housing Amendment Act of 1988

Other legislation

- Community Reinvestment Act

- Equal Credit Opportunity Act

- Home Mortgage Disclosure Act

- Real Estate Settlement Procedures Act American Disabilities Act

(ADA)

(e) New York State Law - Executive Law includes the Civil Rights

Law of the State (NY Human Rights Law - Article 15)

- Additional protected classes; age and marital status

- Includes residential property, land commercial property and credit

transactions

(f) Local Regulations

(g) Exemptions and Exceptions

- Senior Citizen Housing

- Drug users and alcohol abusers

- Two family exemption

(h) USPAP/FIRREA

(i) Enforcement and Duties

-U.S. Department of Justice

-Department of Housing and Urban Development (HUD)

-New York State Department of State, Division of Licensing

-New York State Division of Human Rights

-Administrative Law Judges

-Federal and State Courts

-Responsibilities of individual appraisers

(j) Penalties New York State Federal Government

(2) Development of appraisal (Standard 1 USPAP) 1.5 hours

(a) Bias and discrimination in the analysis in development

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(3) Reporting of appraisal results (Standard 2 USAP) 1.5 hour

(a) Bias and discrimination in the report

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(4) Case studies 2 hours

(a) Neighborhood issues

(b) Improvement issues

(c) External obsolescence

(d) Conscious and Unconscious bias

Under topic b), the subtopics are as follows:

(1) Fair housing, fair lending requirements, and the history of lending 1 hour

(a) What is fair housing?

(b) What is fair lending?

(c) Roadblocks to fair housing/lending

(d) Federal laws Civil Rights Act of 1866

Civil Rights Act of 1964 Fair Housing Act of 1968

Supreme Court

The Housing and Community Development Act of 1974

The Fair Housing Amendment Act of 1988

Other legislation

- Community Reinvestment Act

- Equal Credit Opportunity Act

- Home Mortgage Disclosure Act

- Real Estate Settlement Procedures Act American Disabilities Act

(ADA)

(e) New York State Law - Executive Law includes the Civil Rights

Law of the State (NY Human Rights Law - Article 15)

- Additional protected classes; age and marital status

- Includes residential property, land commercial property and credit

transactions

(f) Local Regulations

(g) Exemptions and Exceptions

Senior Citizen Housing

Drug users and alcohol abusers

Two family exemption

(h) USPAP/FIRREA

(i) Enforcement and Duties

-U.S. Department of Justice

-Department of Housing and Urban Development (HUD)

-New York State Department of State, Division of Licensing

-New York State Division of Human Rights

-Administrative Law Judges

-Federal and State Courts

-Responsibilities of individual appraisers

(j) Penalties New York State Federal Government

(2) Development of appraisal (Standard 1 USPAP) 1 hour

(a) Bias and discrimination in the analysis

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(3) Reporting of appraisal results (Standard 2 USAP) 1 hour

(a) Bias and discrimination in the report

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(4) Case studies 1 hour

(a) Neighborhood issues

(b) Improvement issues

(c) External obsolescence

(d) Conscious and Unconscious bias

Get your anti-discrimination guidance starting on December 10, 2020 on HUD's new searchable website, which will also give guidance on lending, foreclosures, and much more. 

Currently, guidance is available here.  

Starting on December 10, 2020, HUD will make available "a single, searchable, indexed website," and make guidance subject to a 30 day public comment period with a procedure for the public to petition to modify or withdraw guidance per its Interim Final Rule available at 85 FR 71537.

HUD guidance documents "are statements of general applicability and future effect that set forth policy on statutory, regulatory, or technical issues or interpret statute or regulation." In plain English, guidance advises industry as to HUD's interpretation of laws as applicable to described activity. As such, industry is better able to function, in a regulated environment, when industry can request direction on gray areas of law prior to making investment or taking action in that area. 

As background, "[o]n October 9, 2019 (84 FR 55235), the President issued E.O. 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents," which "requires that each Federal agency take certain actions to ensure the transparent availability and use of guidance documents." This Interim Final Rule is made in satisfaction of the E.O.

 Watch the hearing live now here 

What do you think? 

The key question was whether there should be legislation to cap the number of salespersons per supervising broker. Wowwwwwww

“No real estate broker or salesperson shall engage in an unlawful discriminatory practice, as proscribed by any federal, state or local law applicable to the activities of real estate licensees in New York State. A finding by any federal, state or local agency or court of competent jurisdiction that a real estate broker or salesperson has engaged in unlawful discriminatory practice in the performance of licensed real estate activities shall be presumptive evidence of untrustworthiness and will subject such licensee to discipline, including a proceeding for revocation. Nothing herein shall limit or restrict the Department from otherwise exercising its authority pursuant to section 441-c of the Real Property Law.”