housing strategies protecting individual rights to affordable housing

136 Pages·2017·1.4 MB·English

Chapter 3

Protecting
Individual Rights to
Affordable Housing

“Equality may be America's last frontier, just as it was its first, a more difficult frontier to reach than the
outer planets and a rougher terrain than the Rocky Mountains. But the achievement or near achievement of
equality would raise the entire level, the entire nature of democracy... "
Roger Rosenblatt "Coming to America"
LIFE, February, 1990

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GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS 3/1
Contents

1.0 Introduction.............................................................................................. 3/3

2.0 Legal Right to Housing .......................... ........................................................... 3/4

3.0 Challenging Discrimination ............................................................................... 3/5
3.1 Overview
3.2 Race, National Origin, Ethnicity
3.3 Gender/Sexual Harassment
3.4 Disability
3.5 Familial Status/Seniors
3.6 Sexual Orientation
3.7 Other Protected Categories
3.8 Duty to "Affirmatively Further Fair Housing"

4.0 Farmworker Housing ............................. ......................................................... 3/89

5.0 Relocation Assistance Laws ................... ......................................................... 3/95

6.0 Predatory Lending & Other Scams ........ ....................................................... 3/105

7.0 Foreclosure ............................................. ....................................................... 3/117

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3/2 GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS
Protecting Individual Rights

to Affordable Housing

1.0 Introduction
Strategies
P
eople who live in affordable housing or 1. Represent clients in eviction and foreclosure
who want to live in affordable housing are actions and help unrepresented clients defend
often treated unfairly or trapped in themselves effectively.
bureaucratic nightmares. They —
2. Insure that admission processes for affordable
• have fewer resources to fight back even though housing are fair and nondiscriminatory and that
the housing problems may create unbearable people can have hearings to challenge unfair
conditions. decisions.

• may be evicted without good reasons. 3. Protect clients facing displacement by
government action by fighting the displacement
• may have their homes foreclosed upon because and by getting the clients adequate relocation
of events they can't control. benefits and replacement housing.

• may have trouble getting into housing. 4. Protect tenants’ rights to work together on
common issues, and to seek a role in
• may face discrimination in housing because of management and eventual ownership of their
their race, sex, family status, immigration status, housing.
sexual preference, age, disability or economic
status. 5. Insure that subsidized housing owners, public
housing authorities, and shelter and transitional
• may not have a way to change bad or unsafe housing providers have reasonable nondiscrim-
conditions. inatory rules, grievance procedures, and oppor-
tunities for tenant involvement in management
• may be homeless or face arbitrary rules in a and rule making.
shelter.
6. Help tenants challenge health hazards in
• may want to be involved in managing their own housing such as asbestos or lead paint.
housing.
7. Assist clients with special needs in fighting
As their advocates we must to work alongside discrimination and in obtaining accommodation
our clients to insure that they have rights, are of those needs as required by law.
treated fairly, and are given a voice in decisions
that affect them. 8. Challenge discriminatory actions and
conditions, both for individual people and
families and for groups of people.

9. Work for “just cause” eviction and other
protections for tenants in private housing

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GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS 3/3
2.0 A Legal Right to Housing This report gives the U.S. letter grades on each of
Establishing the right to live in decent, safe them. It also offers common sense solutions the
homes is an important goal for advocates to U.S. can adopt to better meet the housing needs
pursue with low-income people. of homeless and poor people.

Housing Rights for All: Promoting and Opening the Door to the Human Right to
Defending Housing Rights in the United States Housing - The Universal Periodic Review and
(Fifth Edition, 2011) argues that U.S. laws are Strategic Advocacy for a Rights-Based Approach to
inadequate to address the profound and diverse Housing3

array of housing problems faced by so many
“In 2010 HUD affirmed for the first time the
Americans. The Manual describes an
relevance of an international human rights
international human rights approach that
mechanism to its role in setting domestic housing
recognizes the legal duties of the government to
policy. Five months later, again for the first time,
respect, protect, and fulfill the right to adequate
the U.S. Department of State, in consultation
housing for every member of society without
with HUD, supported recommendations on
discrimination.1
affordable housing and protecting the rights of

homeless persons, among others, in response to
Resource Alert: This is useful, cutting edge
the Universal Periodic Review. The following
material and a must read for all serious housing
week the State Department announced a
advocates.
re-embrace of economic and social rights,

including the right to housing, after seventy years
“Simply Unacceptable”: Homelessness and
of treating them as second-class rights.”
the Human Right to Housing In the United

States (2016)2
Resource Alert: National Law Center on
National Law Center on Homelessness &
Homelessness & Poverty collects it reports and
Poverty has released a report card grading the

resources on enforcing the human rights of
United States on its response to homelessness
individuals experiencing homelessness.4
and its compliance with the human right to

housing. The Report issues failing grades in
Cross-Reference: Chapter 10, Cutting Edge for
more than one category.
more on the Human Right to Housing.

According to international standards, the human
right to housing consists of seven elements:
• security of tenure;
• availability of services, materials, and infra-
structure;
• affordability;
• accessibility;
• habitability;
• location; and
• cultural adequacy.

1
https://www.nlchp.org/documents/Human_Right_to_
Housing_Manual

2 https://nlchp.org//wp- 3
content/uploads/2018/10/Right_to_Housing_Report_ https://www.nlchp.org/documents/Clearinghouse_Ope
Card_2016-1.pdf ning_the_Door_2011.09

4 https://nlchp.org/human-rights/
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3.0 Challenging Discrimination Challenging Discrimination - Contents

3.1 Overview
3.2 Race, National Origin, Ethnicity
3.3 Gender/Sexual Harassment
3.4 Disability
3.5 Familial Status/Seniors
3.6 Sexual Orientation
3.7 Other Protected Categories
3.8 Duty to "Affirmatively Further Fair
Housing"

Charly Palmer www.aviscafineart.com

H
ousing problems for low-income people
are caused, perpetuated and exacerbated
by discrimination based on race, color,
religion, sex, familial status, disability, sexual
orientation, and national origin. As their
advocates we must vindicate poor people's civil
rights to choose to live in decent, safe, affordable
housing in well-served neighborhoods.

Vindication involves helping people to improve
the housing and neighborhoods in which they
live and enabling people who wish to move into
different neighborhoods ─ usually, white,
"mainstream," middle-income neighborhoods
to do so.

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GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS 3/5
3.1 Challenging Discrimination Overview
.1 Federal Housing Laws a list

.2 Federal and State Fair Housing Laws and
Procedures ─An Overview lays out the
fundamentals of the Federal Housing Act, the
California Fair Employment and Housing Act,
and Unruh Civil Rights Act.

.3 DFEH comparison of Federal and State
Housing Laws charts the key provisions of these
fair housing laws detailing coverage, senior
exemptions, litigation forums, and available
remedies.

.4 Laws Prohibiting Discrimination Against
Affordable Housing & Its Residents focuses on
discrimination against group homes, shelters and
other low-income housing through government
policies or laws such as zoning or planning
ordinances.

.5 Low income Housing Tax Credit MOU re
Fair Housing among The Departments of the
Treasury, Housing and Urban Development and
Justice about the Low Income Housing Tax Credit
Program’s compliance with the Fair Housing Act.

.6 Required Procedure for Requesting
Reasonable Accommodation in Land Use Laws
is a letter from California Attorney General Bill
Lockyer re local government’s affirmative duty to
modify zoning laws for people with disabilities.

.7 DFEH Housing Complaint Process and
Flow Chart describes the steps in dealing with a
housing discrimination complaint.

.8 Fair Housing Resources lists information on
how to contact HUD Fair Housing Enforcement
Centers, DFEH offices and Fair Housing
Councils throughout California.

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3/6 GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS
3.3.1 Federal Fair Housing Laws Section 504
Section 504 of Rehabilitation Act of 1973, 29 U.S.C.
§§ 701, 794
Fair Housing Act

Fair Housing Act, P.L. 90-284, 42 U.S.C. §§ 3601 et
24 CFR Part 8 (6/2/88), 53 Fed Reg. 20216:
seq., as amended by the Fair Housing Amendments
Nondiscrimination Based on Handicap in Federally
Act of 1988
Assisted Programs and Activities

24 CFR Chapter I (3/16/91), Fair Housing
24 CFR Part 9, 59 Fed. Reg. 31036 et seq.,
Accessibility Guidelines, 56 Federal Register 9472 et
(6/16/94): Enforcement of Nondiscrimination on the
seq., as revised in the 6/24/19 Federal Register
Basis of Disability in Programs or Activities

conducted by the Department of Housing and Urban
24 CFR Part 14 et seq., Implementation of the Fair
Development
Housing Amendments Act of 1988; Final Rule, 54

Federal Register 3532 (1/23/89)
Americans With Disabilities Act (ADA)

Americans With Disabilities Act, P.L. 101-336
Title VI
(7/26/90), 42 U.S.C. § 12101, 12131
Title VI of the Civil Rights Act of 1964, P.L. 88-352,

42 U.S.C. § 2000d et seq., Nondiscrimination in
28 CFR Part 35, 56 Fed. Reg. 35694 et seq.,
Federally Assisted Programs
Nondiscrimination on the Basis of Disability in State

and Local Government Services
Civil Rights Restoration Act of 1987, P.L. 100-259

(3/22/88) amending various statutes including § 504
Architectural Barriers Act
and Title VI
The Architectural Barriers Act of 1968, P.L. 90-480

as amended, 42 U.S.C. § 4151 et seq.
Civil Rights Act of 1991 42 U.S.C. § 1981, amending

various statutes including § 504
24 CFR Part 40: Accessibility Standards for Design,

Construction and Alternation of Publicly Owned
24 CFR Part 1: Nondiscrimination in Federally
Residential Structures
Assisted Programs of the Dept. of Housing and Urban

Development – Effectuation of Title VI of the Civil
24 CFR Part 41: Policies and Procedures for the
Rights Act of 1964 – 24 CFR §§1.1 et seq.
Enforcement of Standards and Requirements for

Accessibility by the Physically Handicapped
Section 109

Section 109 of Title I of the Housing and Community
Age Discrimination
Development Act of 1974, 29 U.S.C. § 5309,
The Age Discrimination Act of 1975, 42 U.S.C.
Nondiscrimination in Federally Assisted Programs
§§ 6101-07

24 CFR Parts 6, 8, 570 (Drafts – 2/27/95)
24 CFR Part 146: Nondiscrimination on the Basis of

Age in HUD Programs or Activities Receiving
24 CFR §§ 570.601 and 570.602
Federal Financial Assistance

Executive Orders
Section 3 (Employment Opportunities)
Executive Order 11063, 27 Fed. Reg. 11527 (Eff. 11-
Housing and Urban Development Act of 1968, P.L.
20-62), as amended by Executive Order 12259, Equal
90-448; as amended by the Housing and Community
Opportunity in Housing
Development Act of 1992, § 915, 42 U.S.C. 1701u:

Employment Opportunities for Lower Income
24 CFR Part 107: Nondiscrimination and Equal
Persons in Connection with Assisted Projects
Opportunity in Housing Under Executive Order 11063

24 CFR Part 135 and Subtitle A, et al.,
24 CFR Part 108: Compliance Procedures for
Affirmative Fair Housing Marketing Economic Opportunities for Low & Very Low
Income Persons, 59 Fed. Reg. § 3866 (6/30/96)
24 CFR Part 109: Fair Housing Advertising

Executive Order 12259, 46 Fed. Reg. 1255, and
Executive Order 12892, 59 Fed. Reg. 2939 (1/20/94):
Leadership and Coordination of Fair Housing in
Federal Programs: Affirmatively Furthering Fair
Housing

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GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS 3/7
Federal Contracts pruning back the law’s coverage so late in the
Executive Order 11246, Nondiscrimination Under day.
Federal Contracts (9/24/65, as amended by Executive
Orders 12086 (10/8/78) and 11375 (10/13/67) Justice Kennedy’s opinion appropriately begins

by locating the Fair Housing Act against the
Environmental Justice
background of this country’s long history of
Executive Order 12898, February 11, 1994, 59 Fed.
discrimination and segregation. The Congress
Reg. 7629 (2/16/94), Federal Actions to Address
that enacted the FHA, in the midst of the civil
Environmental Justice in Minority Populations and
Low Income Populations unrest of 1968, was well aware that the
problems it was attacking were (as they remain)
Discriminatory Effects Standard5 deeply rooted in American Society.
24 CFR Part 100, 78 Fed. Reg. 11460 (2/15/13) Accordingly, when enacting the FHA, Congress
Implementation of the Fair Housing Act’s used language focusing on the results of
Discriminatory Effects Standard decision makers’ policies rather than the
motivation behind them.
This rule formalizes the national standard for
determining whether a housing practice violates Excerpted from Morgan Williams, Symposium:
the Fair Housing Act as the result of An endorsement of forty years of effective fair
discriminatory effect. housing enforcement, SCOTUSBLOG (Jun. 25,
2015, 8:38 PM).7
HUD is statutorily charged with the authority and
responsibility for interpreting and enforcing the Update 2019: HUD is attempting to
Fair Housing Act and has long interpreted the eliminate disparate impact as a means of
Act to prohibit housing practices with an combatting discrimination. Victims of
unjustified discriminatory effect, if those acts housing discrimination would be hard-
actually or predictably result in a disparate pressed to overcome the exceedingly high
impact on a group of persons, or create, increase,
bar HUD is proposing when it comes to
reinforce, or perpetuate segregated housing
bringing fair housing cases using disparate
patterns because of race, color, religion, sex,
impact.
handicap, familial status, or national origin.

In effect, HUD’s proposal would effectively
Update 2015: Texas Department of Housing
eliminate disparate impact as a usable legal
and Community Affairs v. Inclusive Communities
tool.
Project, 576 U.S. ___ (2015)6

US Supreme Court holds 5-4 that disparate- Discriminatory housing policies often do
impact claims are cognizable under the Fair not appear to target any particular group of
Housing Act. people and may even seem to apply to
everyone equally. However, in practice,
The Court reaffirms the consistent finding of the
these policies unjustifiably harm some
federal courts over the past four decades that the
groups (e.g., people with disabilities, people
Fair Housing Act bars not only intentional
of color) more than others.
discrimination, but also policies that have an

unwarranted disparate impact. In doing so, the
Disparate impact has made it possible for courts
Court’s majority correctly recognized that it was
to stop a long list of bad practices: funding
not construing a new law, but rather one with a
formulas that concentrate government-
long and proud history that did not warrant
subsidized housing in predominantly non-white
neighborhoods, apartment occupancy limits that
exclude families with children, practices that
5 deny insurance to landlords who rent to people
http://portal.hud.gov/hudportal/documents/huddoc?id

=discriminatoryeffectrule.pdf
7 http://goo.gl/65cIMR
6 Scotus Blog - http://goo.gl/rFjUMQ

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3/8 GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS
receiving federal housing assistance vouchers,
so-called nuisance ordinances that force
landlords to evict tenants who call for
emergency help and incentive programs that
encourage loan officers to sell subprime loans to
black and Latino borrowers.

The new regulation also goes further: The HUD
rule carves out an unprecedented guidance for
the automated decision-making systems that
power the housing market. These are the
algorithms used by lenders and landlords that
deliver judgments on credit risk, home insurance,
mortgage interest rates, and more. Under the new
dispensation, lenders would not be responsible
for the effects of an algorithm provided by a third
party—a standard that critics say would build an
industry backdoor to bias.

The U.S. Supreme Court confirmed in 2015 that
disparate impact was a valid legal tool to combat
housing discrimination. The Court made no
mention in its opinion of the need for changes to
HUD’s current disparate impact rule.

Comment period on the Disparate Impact
Rule ended in September 2019.

Find the latest news on the proposed HUD
rules at https://www.fightforhousingjustice.org/
Supported by National Housing Law Project,
Western Center on Law and Poverty, and Shriver
Center.

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GUIDE TO HOUSING PROBLEMS FOR LOW INCOME CLIENTS 3/9
3.1.2 Federal and State Fair Housing A. Section 1982 of the Civil Rights Act of
Laws and Procedures ─ An Overview8 1866
The first statute enacted to give African-
Americans, and subsequently all Americans,
Outline equal rights to property was Section 1982 of the
I. Evolution of Fair Housing Rights
Civil Rights Act of 1866. It held that “All
A. § 1982 of the Civil Rights Act of 1866
citizens of the United States shall have the same
B. Executive Order 11,063 (1962)
rights... as is enjoyed by white citizens thereof
C. Title VI, Civil Rights Act of 1964
to inherit, purchase, lease, sell, hold, and
D. Title VIII of the Civil Rights Act of 1968 –
convey real and personal property.”9
Fair Housing Act
E. Executive Order No. 12,259 Affirmatively
Furthering Fair Housing B. Executive Order 11,063 (1962)
F. California Unruh Civil Rights Act The first federal anti-discrimination initiative of
G. California Fair Employment and Housing Act this century in the field of housing was
Executive Order 11,063. The November 20,
II. Protected Classes: Who Is Protected
1962 order, signed by President Kennedy,

prohibits discrimination in housing that is
III. Unlawful Practices: What Conduct Is Unlawful
owned, operated, or assisted by the federal
A. General Prohibited Conduct
government. This prohibition extends to race,
B. Land Use Practices
religion, and national origin.
C. Senior Housing Exemption
D. Properties and Practices Not Covered
Under Federal or State Fair Housing Laws C. Title VI, Civil Rights Act of 1964
E. Other Prohibited Practices The 1962 Executive Order was followed by the
F. How to Prove Discrimination Civil Rights Act of 1964. Title VI of the Act
prohibits the denial of benefits and
IV. Procedures and Enforcement
discrimination by any program or activity
A. Private Civil Litigation
receiving federal financial assistance.10 It
B. Action by U.S. or California Justice
covered discrimination in the location and
Department
occupancy of subsidized housing and in the
C. Administrative Complaint
administration of federal urban revitalization

V. Other Laws Prohibiting Housing programs.
Discrimination
A. Ralph Act D. Title VIII of the Civil Rights Act of 1968 –
B. The Bane Civil Rights Act Fair Housing Act
C. Guide Dog Statute The next major fair housing law was Title VIII
D. Other Statutes
of the Civil Rights Act of 1968, the “Fair

Housing Act.” Congress passed the Civil
Cross-Reference: § 3.1.3 DFEH Comparison of
Rights Act of 1968 almost immediately after the
Federal and State Housing Laws below.
assassination of Reverend Dr. Martin Luther

King, Jr.11 Earlier that same year, the United
I. Evolution of Fair Housing Rights
F
air housing laws have provided States Supreme Court had held that
increasingly stronger protection since the discrimination in real estate violated Section
Equal Protection Clause of the Fourteenth 1982.12 The Court, however, held that Section
Amendment of the United States Constitution. 1982 only applied to racial discrimination and

9 42 U.S.C. § 1982, originally enacted as part of the

Civil Rights Act of 1866.

8 Chancela Al-Mansour is the Executive Director of 10 42 U.S.C. §2000(d).
Housing Rights Center in Los Angeles. This article
first appeared in the Legal Services Section News, 11 42 U.S.C. §§3601-3619, 3631.
State Bar of California Vol 19, No. 1 Summer 1994. It
has been modified and updated by Benchmark 12 Jones v. Alfred H. Mayer, Co., 392 U.S. 409
Institute. (1968).

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