Is This Discrimination, or a Disclosure Issue?

I think that if the buyer asked "are the people upstairs noisy" they might be entited to some kind of an answer, though this is all such a subjective issue. What's noisy to one person is quiet to another. By framing the question as to "what kind of people live upstairs" you enter the realm of violating Fair Housing statutes.

Ironically, the very quiet person who lives upstairs now may be selling next month, and the new owners may wear stilleto heels that click on the hardwood floors. Then what? Perhaps better questions are: how well is the building built? how good is the noise insulation? does the condo board enforce the rule about 80% of the floor being covered with carpets?

I do not think it is either one & I believe the listing agent has no reason or duty to know who lives upstairs.  If the buyer is so concerned, it is easy for them to go knock on the door of the unit in question & figure it out.  In any case, those people upstairs may sell this year & a different type of family may move, so I consider it a mute point.  If they do not want kids above them, then they make sure they are on the top floor.

Row, Row........Have you got your paddle before you get in the creek?  This is one of those instances where anybody could be right or could be wrong, depending on which judge you get in front of, and on which day!  My answer to a buyer;s agent would be, "I'm not sure, why don't YOU go knock on the door and ask!"  I don't sell condos, only detached single family homes, and we are only responsible for what is inside the 4 corners of the lot.  Beyond that is the responsibility of the buyer's agent!  I would think that the same would be the rule for condos.......although I am not an attorney (Disclosure)!

I would agree with commentors #25 and #45, this is discriminatory behovior of the type the federal laws are designed to address. 

 If it has to do with the property, it is a material issue,  If it has to do with the people (buyers, sellers, neighbors, anyone) it is considered discriminatory.

Just by saying its the buyer exercising a personal choice does not make it correct.  If a buyer told you it was their choice not to live next to anyone who was purple (some sort of different race), and then proceeded to ask you if the people next door were purple and you proceeded to tell them you would be engaging in discriminatory activity.  Familial status is a protected class just like race and any discussion of this sort is discriminatory.

As far as parties being harmed, it sounds to me like you now have a seller (or landlord) who is not selling/renting a unit and that is directly because the buyer discriminated against someone due to familial status and so we have a party who is now "injured" by the discrimination 

Sorry I was unclear Bill, I was using race as only an illustration.  Substitute the purple people for people with kids and you get discrimination.

I read your question as this: "is it right to disclose the familial status of the upstairs residents?".  The answer is, in my opinion, no, it is not right and is in fact discriminatory due to familial status being a protected class. 

I am not at all saying the buyers have no choice, I am saying that by an agent participating in discussions such as this they are participating in the buyers choice to discriminate. 

Noise upstairs is completely different than children living upstairs.  The buyer didnt ask if the upstairs neighbor was noisy in your example, they asked specifically about familial status.

A person would connect the dots based on your example to assume that the buyer would not buy because of familial status of the neighbor.

As for my last paragraph, by participating in a discussion that is discriminatory, the agent helped the buyer violate fair housing laws.  The thoughts some have illustrated is that its no big deal, no harm is done, the buyer has a choice, don't they?

That is not true though, harm was done to the seller because the buyer in your example did not buy, specifically because of discriminatory attitudes towards a protected class.  Harm was done by the agent because they participated in this discriminatory discussion.

Good question and this issue needs to be addressed. I would agree that it is a material fact and requires disclosure to the buyer. But what do I know I am just a mortgage guy.

Familial status is also included in Fair Housing.  You wouldn't want a FH violation, so tell them to ask the neighbors!

I have to agree with the commentor that said he was frightened by what many people were saying. I truly hope they never run into HUD testers. It may not be a pretty picture. Many may think this is a gray area for some reason, but it is not. Mess with familial status as a tool for "steering" customers and see what happens. Glad I will not be the one paying tens of thousands or losing my license 'cause I ain't telling. For some reason I am going to use my education, the advice of attorney friends, and my common sense. Works for me.

The only time I have been called out on anything like this was when I included 'Within walking distance to elementary school'.  My listing was removed from the MLS until I was able to rewrite the description leaving that out.  I am not sure I trust myself to know exactly what is acceptable and what is not.  Better safe than sorry!!

Hello Bill. I have to agree with you. In California It would be ok to answer this question. The Buyer is simply doing their due dilligence. They clearly are looking for a quiet location with few potential distractions or interruptions. Neither the Listing Agent nor the buyer Agent would be committing discrimination for answering the question. Now if the Buyer told their Agent they only wanted to see homes that did not rent to families, singles or young couples then you would have a far different situation. However, if any Agent is unsure they should speak with their Broker who will then consult with their offices legal Counsel for a clarification.  

Bill, 

Great post.   When I get asked about race, neighborhood type, or neighbors.  I ALWAYS say I cannot legally answer that question, but more importantly, if that is an issue for you and you like the home and then door knock your potential neigbors.   Worst case you did not buy a home where you do not want to be.  Best case, you make new friends in you new neighborhood.

Generally, the best Realtors do not try to be the answer man outside their area.  I know homes and pricing.  I recommend experts for other items and homework for the buyers/sellers.

I hope this helps!

Tony Barker, Broker, Trainer, Mentor

Premiere Home Realty Inc, Cypress Texas and surrounding Houston METRO area in Texas.

premiere-homes.com

832-867-0835

I think the issue is not about "children " per se. I think it is about assumptions the prospective buyer is making about "noisy " neighbors. I think the agent should point out that assumptions may be incorrect. Who wants to live under neighbors who are noisy. But a lot of factors are involved as several commentors have pointed out, i.e. flooring, building construction,  condo bylaws, etc. One person with a guitar could make life very unpleasant. The buyer should dig deeper if they are concerned, but keep in mind that  a certain amount of noise is part of condo life.

Sections from the Fair Housing Act was copied from http://www.justice.gov/crt/housing/title8.php

Title VIII of the Civil Rights Act of 1968 (Fair Housing Act)

(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

Note that the first part of the section description says "Discrimination", but then adds "...and other prohibited practices".  I do not believe that "discrimination" is the issue; no one is being denied housing based on a protected class. I believe the issue is with "other prohibited practices".

When I applied what I thought was applicable in the scenario that was presented, this is the way the law reads:

"To make... any... statement... that indicates any preference... based on... familial status..."

A buyer has every right to choose where he/she lives according to the buyer's criteria, discriminatory or not.  But I would recommend the buyer checking into it without my assistance.  A hypothetical situation popped up in my head while reading all the posts.  What if the seller outright lies to the listing agent, who passes this inaccurate information along to the selling agent and in turn, the selling agent to the buyer.  Aside from what I think is a prohibited practice, the listing agent and the selling agent would potentially be taking on unnecessary liability by trying to answer the buyer's question.

Discrimination as someone stated is being denied housing. It is not discrimination to ask who the neighbors are---it's a statement of fact to find out how many people live above you, maybe not if they are legally married, what their sexual preference is, their ethnicity or their ages, but to find out who/how many your neighbors are could not be construed as discrimination.

While the question of, "is there a family with small kids living above us" might seem innocuous, what if the question was, "are there any black people living next door?  If so, I don't want to live there." Is that just a material fact question that you would feel comfortable answering?  I sure wouldn't!  Well, it's the exact same question...just a different protected class.  The buyer in my latter question is also not being discriminated against, but is still asking a question that I would avoid at all costs.

Just because kids with families is a less emotionally charged issue than race or sexual orientation, it's still no less a part of the fair housing rules.  I would advise the buyers to go upstairs, knock on the door, meet their potential neighbors, and make their own decision.